78 Mo. 491 | Mo. | 1883
This was a suit for the foreclosure of a deed of trust, and was commenced in the DeKalb circuit court at the October term, 1878, and was thence taken by change of venue to the circuit court of Olay county. The deed was executed by Samuel P. Clark to Hugh J. Robertson, trustee, on the 7th day, of September, 1871, for the purpose of securing the payment of four notes, one in the sum of $980 executed by said Samuel P. Clark to Ryland Shackelford, the other three executed by Gilmer, Clark & Co., one in favor of John Lynn in the'sum of $1,000 ; one
These notes were all past due when the deed was executed. The land described in it was the individual property of Samuel P. Clark, the grantor in the deed. The note in favor of Ryland Shackelford was the individual debt of said Samuel P. Clark, and was given for money borrowed for his private use; the remaining three notes were the firm debts of the co-partnership of Gilmer, Clark & Co., a firm composed of .John A. Gilmer, Samuel P. Clark and William Gilmer, all of whom are still living, and were given for money which went into the business of the firm. At the date of the execution of the deed of trust, as well as at the commencement of the suit, said firm was insolvent, and was possessed of no firm assets; each member of the firm was also insolvent. These facts all appear in the record, and in an agreed statement of facts. On trial of the case the court rendered a judgment or decree foreclosing the deed of trust, and directing the proceeds of the security to be apiolied on all the notes pro rala, after pay-, ment of costs. From this decree the case comes before us on appeal.
There is but a single question presented to us for decision, and that is the refusal of the court to adjudge a priority in favor of the Shackelford note, and its consequent action in adjudging that the proceeds of the sale be applied equally upon all the notes described in the deed in the ratio of their' respective amounts. No principle in .the law of partnership is better settled than that the creditors of a partnership have priority over the creditors of an individual member thereof in respect to the funds of the partnership.
From ’ this priority of the partnership .creditors upon the partnership funds, it does not follow as a logical deduction, that the individual creditors have priority upon the separate or individual funds, for the reason that no lien,
A familiar principle prevails in equity to the effect that where a creditor may resort to two funds for the payment of his debt, wl de another creditor can resort to only one of the funds the creditor having access to the two funds
Having reached the conclusion that there is no priority in favor of the plaintiff’s note, it is unnecessary to consider whether the language of the deed of trust relating to the application of the proceeds thereof would be sufficient to displace or control such priority. Wilcox v. Todd, 64 Mo. 388.
As the record is without error, the judgment should be affirmed, and it is so ordered.